Soldatow v Australia Council

[1991] FCA 172

Re: SASHA SOLDATOW
And: AUSTRALIA COUNCIL
No. G884 of 1989
FED No. 172
Administrative Law
28 FCR 1
103 ALR 723

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - statement of reasons for decision - whether statement provided a proper and adequate explanation of the reasons for the decision.

Administrative Decisions (Judicial Review) Act 1977 (Cth) - ss.13(1), (7)

HEARING

SYDNEY

#DATE 19:4:1991

Counsel for the applicant: Mr J. Basten

Solicitors for the applicant: Smits Naple Barwick

Counsel for the respondent: Mr D. Yates with Mrs J.

Stuckey-Clarke

Solicitor for the respondent: Australian Government Solicitor

ORDER

Within 28 days or such further time as the Court may allow, the respondent supply a statement in accordance with s.13(1) of the ADJR Act respecting the respondent's rejection of Mr Soldatow's application for a Writers Fellowship (Category B). Liberty to apply shall be reserved, such liberty to include liberty to apply for further and better particulars when that statement has been delivered.

The respondent pay the costs of this part of the proceedings.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In these proceedings, orders of review are sought with respect to a decision of the Australia Council, made on or about 2 September 1989, not to award a Writers Fellowship (Category B) to the applicant, Sasha Soldatow, for the 1990 year. In this present part of the proceedings, Mr Soldatow seeks an order under s.13(7) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") that an additional statement complying with s.13(1) of the ADJR Act be delivered.

1. Section 13(1) of the ADJR Act provides:-
   "Where a person makes a decision to which this section applies, any
   person who is entitled to make an application to the Court under
   section 5 in relation to the decision may, by notice in writing given
   to the person who made the decision, request him to furnish a
   statement in writing setting out the findings on material questions of
   fact, referring to the evidence or other material on which those
   findings were based and giving the reasons for the decision."
   A request for a statement of reasons in accordance with this provision was made by Mr Soldatow on 2 November 1989. A statement was furnished on 24 November 1989 and a further statement was furnished on 24 January 1991. However, it is alleged that those statements do not comply with the requirements of s.13(1).

2. Section 13(1) requires proper and adequate reasons which are intelligible, which deal with the substantial issues raised for determination and which expose the reasoning process adopted. The reasons need not be lengthy unless the subject matter requires but they should be sufficient to enable it to be determined whether the decision was made for a proper purpose, whether the decision involved an error of law, whether the decision-maker acted only on relevant considerations and whether the decision-makers left any such consideration out of account. See e.g. Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196; Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500; AR.M. Constructions Pty Limited v Deputy Commissioner of Taxation (1986) 10 FCR 197; Ansett Transport Industries (Operations) Pty Ltd v Taylor (1987) 18 FCR 498; Hatfield v Health Insurance Commission (1987) 15 FCR 487; Dornan v Riordan (1990) 95 ALR 451.

3. The making of an order under s.13(7) is discretionary. Therefore, before making an order, the Court should be satisfied that, notwithstanding that the reasons given may not satisfy all aspects of s.13(1), nevertheless, the ordering of a fuller and better statement would be a useful step furthering the interests of justice. Section 13 and indeed the ADJR Act as a whole are provisions concerned to promote access to and the achievement of justice.

4. The subject decision was taken by a committee of the Australia Council to whom the power of decision-making had been delegated. The committee was known variously as the Writers Fellowships Committee, The Writers Assessment Committee and The Writers Grant Assessment Committee. I shall refer to it as "the Committee". There were 15 members of the Committee, the chairperson being Rosemary Wighton. The first s.13 statement was signed by Dr T.W. Shapcott, Director of Literature Unit, Australia Council and the second was signed by Sandra Forbes, Director of Literature Unit. Neither Dr Shapcott nor Ms Forbes was a member of the Committee and this may be one reason why the statements supplied are so uninformative. Indeed, the statements given do not in terms show that they have the approval of or were prepared by the Committee or any member thereof. A further factor inhibiting the provision of adequate reasons was that the Australia Council regarded all information concerning applications for grants as confidential.

5. In the result, the two sets of reasons deal almost exclusively with matters of a procedural nature and say little as to the reasons for the decision. The crux of the reasons given by Dr Shapcott was:-
   "12. The Committee decided to make grants only to the applicants in
   

their final list of recommendations, in accordance with the funding available to the Committee."

Sandra Forbes' statement went a little further and stated, inter alia:-

"19. The Writers Grant Assessment Committee only had sufficient funds

to award to writers 28 One Year Category B Fellowships and 5 Six-Month Category B Fellowships.

20. The Writers Grant Assessment Committee awarded grants to writers after the competitive assessment of each application as

described above.

21. In relation to the successful applicants, Mr Soldatow's

application was considered not to have sufficient merit to be awarded a grant."

1. The Committee had before it many applications for grants and it is clear from the statements that those applications were considered over a period of three days. The application made on behalf of each writer was assessed in the first instance by two members of the Committee, and, in the event of doubt or disagreement, also by a third member of the Committee. A form was filled in by each assessor ranking the items "literary merit", "cultural significance", "originality of project" and "possibility of publication" in the categories of "very high", "high", "middle" and "low". Each assessor then answered "yes" or "no" to the question "application recommended".

2. Neither statement of reasons makes any mention of the actual assessments made of Mr Soldatow's projects, but I would not make an order just on that ground for the assessment sheet has been obtained following an application under the Freedom of Information Act (1982) (Cth). However, it is crucial to any statement of reasons in this context that the statement discloses the Committee's assessment of the value of the writer's work and of his application. Questions of confidentiality cannot inhibit the making of a full statement as to this. The statement of reasons ought to disclose not merely how each of the original assessors assessed the writer's project, and in Mr Soldatow's case there was some disagreement, but also how the Committee assessed his application, if the Committee had a view on it.

3. Of course, the Committee may not have had a collective view. But the statements of reasons show that Mr Soldatow's name went on to a short list, that there was discussion as to the merits of the applications and that a consensus was reached, at least as to who should be the successful grantees. If the members of the Committee came to a consensus or were generally agreed as to the merits of Mr Soldatow's work and as to matters such as the possibility of publication of his proposed works, then those matters ought to be disclosed. Even a matter such as publication is not unimportant for it was one of the factors taken into account. Mr Soldatow contends that he has had work published and that he had contracts for the publication of the two works which he put forward for the Committee's consideration. As to such a matter, Mr Soldatow is entitled to know what material the Committee took into account and what findings it made, if findings were made.

4. The statements of reasons show that the Committee had only limited funds and decided to award 28 one year Category B fellowships and 5 six months Category B fellowships, allowing the grant of 33 fellowships. Sandra Forbes' statement of reasons refers to the fact that Mr Soldatow's name was included on a preliminary list and then states:-
   "After further deliberations at its said meeting in relation to the applications listed as described above, which deliberations also took into account:
   

(a) the budgetary limitation imposed for grants in that year;

(b) the genre of the works the subject of the listed applications;

(c) the desirability of achieving, where possible, a

geographically equitable distribution of grants throughout Australia on a State by State basis; and

(d) the desirability of achieving, where possible, an equal

distribution of grants between male and female applicants The Committee by consensus decided to prefer 33 applicants over Mr Soldatow and the balance of the applicants who were listed."

1. It is this paragraph plus the reference in paragraph 21 of Ms Forbes' statement to "sufficient merit" which is said to constitute an explanation of the reasons why Mr Soldatow did not receive a grant.

2. But that information does not disclose whether the projects of the 33 successful writers were preferred because each was thought to have greater literary merit, cultural significance, originality and possibility of publication or whether some of the writers who were successful for reasons of geography or gender or other cause. The statements do not show whether Mr Soldatow failed because there were a great number of male applicants from New South Wales or because his work had less literary merit than that of the 33 successful writers or because it was thought that he did not need a grant or for some other reason. One of Mr Soldatow's assessors thought his projects to have high literary merit, high cultural significance and high originality and that the possibility of publication was very high. The statements of reasons do not show whether this was the view taken by the Committee as a whole or at what level the Committee assessed Mr Soldatow's work. The statements of reasons do not show how Mr Soldatow's work was considered to stand in relation to that of the successful grantees.

3. A proper and adequate explanation of these matters may not necessarily require the disclosure of information which is confidential. If the fact was that the Committee, after discussion, came to the view that the merits of Mr Soldatow's projects should be ranked only in the middle or low categories and if the Committee assessed the projects of all the successful grantees at a higher order and if that was the reason why Mr Soldatow did not receive a grant, that may be a sufficient statement of the reasons for the decision, though I do not express any view that it would be sufficient. I leave open the question as to whether an order for further reasons would be made requiring the individual assessments of each of the successful writers to be disclosed. There may be reasons why, in the context that the applications and the assessments were understood to be confidential, an order should not be made requiring disclosure of details with respect to other applications. Section 13A of the ADJR Act may also have application. But Mr Soldatow is entitled to know the substance of the reason or reasons why his particular application was not successful. Questions of confidentiality will not inevitably be involved in disclosing the factors that were taken into account in his case and how his particular application was considered. Of course, in certain circumstances, a question of confidentiality may arise. But we have not reached that stage of determining that point.

4. The two statements of reasons disclose that the Committee recommended to the Australia Council that funds be made available for further grants and that the Committee determined a priority listing of six writers to whom grants could be considered. Mr Soldatow was ranked last on the priority list. In the result, no further funds were made available by the Council. This additional information is of interest and an inference may be drawn that Mr Soldatow's application was considered to be well out of the running. But even so, there is no disclosure as to the reasons why Mr Soldatow's application was not considered in a better light.

5. I propose at this stage simply to order that a statement of reasons complying with s.13(1) be delivered. Section 13(7) contemplates that an order will specify matters in relation to which further and better particulars should be supplied. In the present case, there is such a dearth of explanation of the reasoning process that it is premature to specify further matters in respect of which additional information should be supplied. It is desirable that a fresh statement be prepared dealing with the matter afresh and that that statement should express the reasons of the decision-maker, that is to say, of the Committee which actually considered the matter and made the decision. It is obviously desirable that the members of the Committee should be consulted and it seems desirable that the statement of reasons should have the approval of those persons who were members of the Committee. It is the members of the Committee who know what were the factors which were taken into account and which influenced the decision in relation to Mr Soldatow. It should not be a difficult task to set out a statement by or on behalf of the Committee of the factors which were considered in Mr Soldatow's case and, if there was a general consensus as to Mr Soldatow's projects and his application, what that view was and what findings were made. The task to be undertaken is not a technical one. It is simply the task of explaining in clear, intelligible terms how the Committee regarded Mr Soldatow's application and why it was refused.

6. I have in mind that, if the further statement is thought to be inadequate, an application for further particulars may be made. For this purpose I shall reserve liberty to apply.

7. I shall therefore order that within 28 days or such further time as the Court may allow, the Australia Council supply a statement in accordance with s.13(1) of the ADJR Act respecting the Council's rejection of Mr Soldatow's application for a Writers Fellowship (Category B). I shall reserve liberty to apply, such liberty to include liberty to apply for further and better particulars when that statement has been delivered. The applicant should have the costs of this part of the proceedings.